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3232Quitclaim Deed Forgerieshttps://aboutfloridalaw.com/2018/10/16/quitclaim-deed-forgeries/
Tue, 16 Oct 2018 13:05:13 +0000https://aboutfloridalaw.com/?p=9679In Florida, anyone who wants to own or possess real estate (land with or without improvements) must do so in writing by way of a Deed. The validity of that Deed will depend upon the language contained therein as well as technical issues, like signing, witnessing, notarization, etc.

There are several kinds of deeds recognized in Florida, including a general warranty deed and a special warranty deed.

The most common deed in Florida is a quitclaim deed.

What is a Quitclaim Deed?

Under Florida law, a quitclaim deed is a deed that transfers the least amount of protection to a transferee or grantee. In a quitclaim deed, the only interest being transferred to the grantee is whatever interest the transferor or grantor has in the subject property.

Essentially, the grantor transfers and releases all right, title, and interest, or claims the grantor has in the land to the grantee. There are no warranties in these deeds. In other words, there is no guarantee that the property is not subject to any liens or encumbrances or even that the grantor has the right to transfer the real estate. Zurstrassen v. Stonier, 786 So. 2d 65, 71 (Fla. 4th Dist. Ct. App. 2001).

1849 Plat Exhibiting the State of the Surveys in the State of Florida with References

Which means, quitclaim deeds leave the grantee vulnerable to all sorts of legal issues down the road, something we discussed before in our informative article titled Quitclaim Deed Lawsuits.

Forged Quitclaim Deeds

Unfortunately, forged quitclaim deeds are a real problem here in the Sunshine State. Under Florida case law, the act of “forgery” involves either a material alteration to a valid deed or creating an entirely false deed outright.

Why bother? The motivation for forging deeds is simple: the person wants to fool someone, usually a bank (the wrongdoer will get a cash out mortgage from an unsuspecting bank and steal the equity from an innocent homeowner). Forged deeds are often valid legal documents that have been tampered with, or “altered.” Tampering with valid deeds is perhaps easier than creating an entire forged deed from scratch.

For example, in the Mann case, a Florida property owner’s ex-wife altered the deed to the land by “whiting out” his mother’s name as grantee and replacing it with their parties’ names. She then recorded that altered deed.

Later, the ex-husband went to court arguing that his ex-wife had altered and recorded the deed without his knowledge or consent in order to covertly procure a joint interest in the property. The ex-wife argued she did the “whiting out” on the valid deed at the request of her ex-husband, because it would save him money (avoiding payment of documentary stamps). Neither challenged that the original deed had been “whited out” with the mother’s name being removed.

In some situations, more than one victim may be involved in the fraud. Here, the court will consider the innocent parties who are victims of a forgery and fraud. In this situation, the law holds that the “least innocent” should suffer, but not the “more innocent” victim.

The example in Palmer involved a mother who bought property here in Florida and put title to the real estate in both her name and her son’s name. They were joint tenants with right of survivorship (JTWROS).

As JTWROS, her son could convey his interest if he chose to do so. The son wanted to sell the property (instead of stealing the property, he could have partitioned it and saved himself a big headache).

So, he forged a quitclaim deed that purported to transfer his mother’s interest in real property to him. This ended the JTWROS and created a tenancy in common. The son then sold the land to a buyer who took out a mortgage in order to make the purchase.

The forged deed was discovered, and the case went to court. The Court held that as between the two innocent parties—the mother and the buyer who took out the mortgage — the mother was the “least innocent.”

Statute Of Limitations

In most real estate disputes, there is a twenty (20) year deadline for asserting a legal claim. Florida Statute 95.231 provides that “[a]fter 20 years from the recording of a deed or the probate of a will purporting to convey real property, no person shall assert any claim to the property against the claimants under the deed or will or their successors in title.”

However, when a forged deed is involved there is an exception to this statutory limit on claims.

When someone wishes to challenge a deed as being a forgery, there is no deadline. There is no Florida Statute of Limitations defense, including Florida Statute 95.231, that can be asserted.

However, this does not mean that a forged deed has the power to keep “title” defective in perpetuity.

Marketable Record Title Act

First, under Florida Statute 712.02 (the Marketable Record Title Act (MRTA)), there is a thirty (30) year closure for all claims. This is called a “curative act.”

Under the MRTA, anyone with legal capacity to own land who has been vested with any kind of land ownership in the Florida real estate records for 30 consecutive years or more is considered to have a marketable record title free and clear of all claims, except those defined in the MRTA.

(1) Estates or interests, easements and use restrictions disclosed by and defects inherent in the muniments of title on which said estate is based beginning with the root of title;

(2) Estates, interests, claims, or charges, or any covenant or restriction, preserved by the filing of a proper notice in accordance with the provisions hereof;

(3) Rights of any person in possession of the lands, so long as such person is in such possession;

(4) Estates, interests, claims, or charges arising out of a title transaction which has been recorded subsequent to the effective date of the root of title;

(5) Recorded or unrecorded easements or rights, interest or servitude in the nature of easements, rights-of-way and terminal facilities, including those of a public utility or of a governmental agency, so long as the same are used and the use of any part thereof shall except from the operation hereof the right to the entire use thereof;

(6) Rights of any person in whose name the land is assessed on the county tax rolls for such period of time as the land is so assessed and which rights are preserved for a period of 3 years after the land is last assessed in such person’s name;

(7) State title to lands beneath navigable waters acquired by virtue of sovereignty;

(8) A restriction or covenant recorded pursuant to chapter 376 or chapter 403; and

(9) Any right, title, or interest held by the Board of Trustees of the Internal Improvement Trust Fund, any water management district created under chapter 373, or the United States.

Stale Claims Create Equitable Presumption

Another form of closure for real estate title records involves an equitable prohibition against stale claims. In these cases, if there is evidence of a forged quitclaim deed then the claims against it need to be pursued in a timely manner. Likewise, if a quitclaim deed is challenged as being forged and there is evidence to refute that challenge, this too must be presented without unreasonable delay.

Courts have held that the 20-year limitations deadline will apply in cases of a forged deed where there has been a long delay in asserting the “proofs of the validity or invalidity.”

In Whaley, the Clay County public records showed land owned by trustees Blake & Benedict as of December 1, 1897, and going back (through predecessors) to 1863. In 1908, Blake and the heirs of Benedict, by an instrument recorded in Clay County, conveyed the land to Charles A. Brown, Jr.

This deed sat in the Clay County public records for over 30 years without anyone questioning its validity. It was therefore considered a “valid root of title” when subsequent challenges to the ownership were made.

Why? In 1908, there were no claims upon the land and the records reflected a long-standing chain of title which no one ever questioned. Many years later, in the 1960s, a quiet title action was filed based upon transactions that happened prior to 1908 and the deed transfer to Mr. Brown.

The court held that the 1908 conveyance to Mr. Brown “… ripened with the expiration of time into a valid root of title within the meaning of the cited recording statutes.” Claims made against the title were precluded equitably as time-barred.

Burden of Proof in a Forged Quitclaim Deed Case

How much evidence? The person seeking to invalidate the deed, or who is claiming that a quitclaim deed is forged, must come forward with authenticated and admissible evidence. This can include both documents and witness testimony (including depositions or affidavits attached to summary judgment motions).

This is a great benefit to those seeking to have a quitclaim deed voided. That’s because, if the case were filed as a fraud action, then the plaintiff would have to bring forward specific evidence of the fraud. In fraud cases, the burden of proof is by “clear and convincing evidence,” which is a much higher standard. .” Pate v. Mellen, 237 So. 2d 266 (Fla. Dist. Ct. App. 1970).

Presumptions in Quitclaim Forgery Cases

In quitclaim deed forgery cases, the courts recognize certain legal presumptions that depend upon the alteration that was made to the deed. For example, there is a presumption that if the deed alteration only related to the completion of a description in the deed’s language, then the alteration is presumed to have been made contemporaneously with the execution of the deed. Kendrick v. Latham, 25 Fla. 819, 6 So. 871 (1889).

However, if the alteration was “material” and “patent on the face of the deed,” then there is no legal presumption. The person defending the deed must show that the alteration was made before it was delivered. Harvard v. Banks, 64 Fla. 308, 60 So. 345 (1912)

If there has only been an “interlineation” or an “erasure” on the deed’s face that alone will not be enough to find the deed was forged. Those challenging the deed, must do more. The challenging party will have to provide specific evidence of the circumstances surrounding the transaction, to demonstrate that fraud was involved. Id.; see, Stewart v. Preston, 1 Fla. 10, 1846 WL 997 (1846).

Characteristics of a Forged or Fraudulent Deed

If you are examining a quitclaim deed that purports to transfer real estate in Florida, there are certain hints or clues to look for to determine if the deed is forged, including:

The deed doesn’t seem as if it is being used for one of the traditional purposes of a quitclaim deed, namely correcting a scriveners’ error in the legal description; or correcting the failure to add a spouse, dissolution of marriage, partition action, gift between family members, etc.

The deed is handwritten.

The deed does not show who created the document.

Minimal doc stamps were paid when the deed was recorded.

The deed shows the grantee as the person who created the document.

The deed is recorded several months after it was allegedly executed.

The acknowledgment (notary section) is incomplete.

The property appraiser’s records show an out of state address for the grantor but the deed was acknowledged in Florida.

The deed shows minimum documentary stamps. (This is the first item I look at when examining a Quit Claim Deed to determine if there is fraud).

What Should You Do About A Forged Quitclaim Deed In Your Chain Of Title?

Should you have a concern about title to your real estate or a question about the validity of a quitclaim deed found in the chain of title, then a good piece of advice is to speak with an experienced Florida real estate lawyer to learn about your rights. That’s because, in some instances, the only option maybe to file a quiet title lawsuit to clear the cloud on title caused by the forged document.

The good news is that most real estate lawyers, like Larry Tolchinsky, offer a free initial consultation (over the phone or in person, whichever you prefer) to answer your questions.

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Do you have questions or comments? Then please feel free to send Larry an email or call him now at (954) 458-8655.

If you found this information helpful, please share this article and bookmark it for your future reference.

]]>3 Types of Foreclosure Defenses In Florida https://aboutfloridalaw.com/2018/08/14/types-of-residential-foreclosure-defenses/
Tue, 14 Aug 2018 20:25:15 +0000http://aboutfloridalaw.com/?p=7286In Florida, foreclosure defenses (for residential foreclosures) can be categorized into three different arguments. Those arguments focus upon either (1) the validity of the mortgage; (2) whether or not there has been a “default” under the law; and (3) if the lender had a legal right to accelerate the debt under the circumstances of the case.

Florida condos are often the subject of foreclosure lawsuits.

1. Attacking The Validity Of The Mortgage

Foreclosure defendants are entitled to use any contractual defense that pertains to their circumstances. These defenses include issues like fraud, the statute of limitations and standing.

Fraud

If the borrower can demonstrate that the home loan was based upon fraud on the part of the lender or its agents, then the foreclosure action should fail. However, proving fraud is not easy to do because the elements of fraud must be proven with particularity.

Every civil action filed in Florida has a deadline. If a foreclosure lawsuit is filed after the deadline has passed, then it is barred by operation of law. This deadline is set in our “statute of limitations.”

Under Florida Statute 95.11(2)(c), all mortgage foreclosure lawsuits must be filed within five (5) years. If the bank files the foreclosure lawsuit after five years have passed, then the borrower can assert a limitations defense asking that the case be dismissed as a matter of law.

Under Florida Statute 95.031, the time starts to run when the last element constituting the cause of action occurs. In foreclosure lawsuits, this can be when there was a first written demand for payment, see Ruhl v. Perry, 390 So.2d 353 (Fla. 1980). It may be the earlier of the date when acceleration clause is invoked or stated date of maturity. Smith v. Federal Deposit Ins. Corp., 61 F.3d 1552, 1561 (11th Cir. 1995).

There are numerous issues for any foreclosure involving MERS. For instance, it may well be that merely having MERS listed as a party on the mortgage as a “nominee” may be enough to defend against the foreclosure lawsuit.

Having MERS involved may in and of itself negate the standing of the lender attempting to foreclose on the defendant’s property. Failure to have standing means the lender has no legal right to proceed with the cause of action.

2. Has There Been A Legal Default?

Another collection of foreclosure defenses available to a borrower is determining whether or not there has been a legal default under the mortgage.

The entire loan package is investigated, reviewing paragraph by paragraph the closing documents and legal instruments to determine what obligations and promises were made by each side (the “covenants”). The particular facts surrounding the inception of the loan as well as all of the mortgagor’s actions must be evaluated. See, Spector v. Vent Vue Window Corporation, 115 So. 2d 570 (Fla. Dist. Ct. App. 1959).

Often, late payments are the basis of filing a foreclosure lawsuit. This category of foreclosure defenses works to challenge the validity of that action.

Payment

There are times when the borrower has paid his or her monthly mortgage payments, but the lender does not accept or honor them. If the lender proceeds to file a foreclosure lawsuit, the borrower has a valid foreclosure defense if he or she can demonstrate to the court that the borrower has met his or her pending obligations under the loan, insofar as they existed before the lender accelerated the debt.

The act of delivering a payment is sometimes called “tender,” and it can be a valid defense to a Florida foreclosure action. For more, read Payment Defense to Foreclosure.

Bank Fails to Follow Federal Law Covering Home Loans

The home loan industry is heavily regulated, and many different federal laws have been passed by Congress not only to help borrowers get home loans but to oversee the actions of mortgage lenders. The failure to follow any of these federal laws, rules, or regulations by the mortgage lender can become a valid foreclosure defense for the borrower in a Florida foreclosure lawsuit. They include:

Home Ownership Equity Protection Act (HOEPA)

Here, if the first mortgage lien has an interest rate that is higher than an 8%, then it is a high rate loan covered by HOEPA. Borrowers must get special disclosures for these kinds of mortgages. The disclosures must be given at least 72 hours before closing on the loan.

Under the terms of HOEPA, if its provisions are not followed to the letter by the lender, then the borrower has a right to rescind the loan as well as a foreclosure defense. (The state version of HOEPA, the Florida Fair Lending Act, is found in Florida Statutes 494.001 et seq.)

Under HAMP, lenders cannot file a foreclosure lawsuit (or take the next step in the foreclosure process) if the borrower is involved in a modification plan, or other loss mitigation procedure, as defined by the statute. This law was passed as part of the Foreclosure Fraud bailout, to try and resolve the huge numbers of foreclosures that were being filed by lenders in Florida and elsewhere in the country.

Under the law, mortgages can be modified and mortgage payments are reduced to a ratio that corresponds to a borrower’s gross monthly income. Foreclosure proceedings cannot continue once HAMP is in place. To do so is to provide the borrower with a foreclosure defense defined by this Federal statute.

3. Was There A Legal Right To Accelerate The Debt?

The third category of foreclosure defenses is similar to the arguments against the legality of the default. Here, longstanding principles of fairness (equity) are applied to the situation.

Over time, Florida courts have built legal principles consisting of equity defenses which apply both in standard contract cases as well as in foreclosure actions. These include equitable estoppel, waiver, laches and unconscionability. Here, the court will deny acceleration of the debt based upon equitable reasons.

In Florida, since mortgage foreclosure lawsuits are considered equitable proceedings, (See – Cross v. Federal Nat’l Mtg. Ass’n, 359 So.2d 464 (Fla. 4th DCA 1978)), one of the most common equitable defenses in Florida jurisprudence is the doctrine of “unclean hands.” If the borrower (defendant) can provide admissible evidence that the lender (plaintiff) was involved in illegal or improper activity, which may or may not include fraud, then the action has been filed with “unclean hands.”

Procedural And Due Process Failures As A Valid Foreclosure Defense

In addition to the above substantive categories of defense in a residential foreclosure, the defendant may find a successful argument against the bank’s attempt to foreclose on their home based upon procedure and due process failures.

Foreclosure actions are lawsuits that must strictly comply with the procedural requirements established to protect the borrower against the bank. Here, things like failure to give the requisite notice, or service of process, can result in the dismissal of the proceedings.

Bank Failed to Provide Proper Legal Notice to Borrower

Under Florida law, statutes have been passed that contain very specific provisions on how the bank must give formal notice of default on the home loan. For instance, there is a 30 day notice of default that must be given before the bank starts the foreclosure process.

In a foreclosure action, the bank must follow all the legal formalities of any other civil plaintiff. This includes meeting the procedural requirements for service of process upon the borrower as party defendant.

Under Rule 1.070 of the Florida Rules of Civil Procedure, the bank has 120 days to serve the borrower with a summons, and the time begins to run on the date that the lawsuit was filed with the clerk’s office. The person who “serves” the borrower is called the “process server.”

This person has legal duties under Rule 1.070 and the Florida Statutes, including Florida Statutes 48.20, 48.031(5). He or she must do things that include:

Provide copies of the filing documents to the borrower-defendant;

These copies must be true, correct, and complete;

The borrower-defendant must be told what the documents are (what they contain);

The server must give the borrower his official identification number as a process server in the State of Florida;

Not try and serve the documents on a Sunday;

Meet specific notice requirements if the borrower cannot be found and service is done by mail; and

The server must initial the copies given (“served”) to the borrower.

If these procedural requirements for service of process in a foreclosure lawsuit are not followed, then the defendant can move the court to “quash” the service and dismiss the entire case based upon defective or insufficient service of process.

What If The Bank Files A Procedurally Flawed Complaint?

It is surprising how often lenders, with their staff of attorneys as well as outside counsel, have failed to file a proper pleading in a foreclosure lawsuit. First of all, as in any civil matter, the pleading rules of the Florida Rules of Procedure must be met.

Under Rule 1.130, the lender must attach both the mortgage and the promissory note to the pleading asserting its foreclosure cause of action (the “complaint”). If either of these documents is not attached to the document, or if they are incomplete in anyway, then the procedural rules have not been met.

Moreover, the plaintiff must affirm (“verify”) that the foreclosure complaint is based upon facts “alleged therein” that are “true and correct.” Failure to have a duly authorized representative of the lender-plaintiff sign the complaint “under penalty of perjury” means that the complaint fails to meet the procedural requirements. See, Florida Rules of Procedure 1.115(e).

All other provisions of Florida Rule of Procedure 1.115 must also be met, as the specific procedural rule governing mortgage foreclosures in Florida. These include requirements that the complaint must:

Contain affirmative allegations expressly made by the claimant at the time the proceeding is commenced that the claimant is the holder of the original note secured by the mortgage; or allege with specificity the factual basis by which the claimant is a person entitled to enforce the note under section 673.3011, Florida Statutes; and

If the claimant seeks to enforce a lost, destroyed, or stolen instrument, an affidavit executed under penalty of perjury must be attached to the claim for relief.

Any failure of the foreclosure complaint to meet the procedural requirements under the Florida Rules of Procedure provides the borrower with a valid foreclosure defense and grounds to seek dismissal of the case.

If the mortgage has changed hands between financial institutions (one bank sells the loan to another), then there needs to be proper corresponding assignments of the mortgage and endorsements to the note (or the Allonge).

Failure to follow these basic legal concepts can give the borrower facing foreclosure the defense of “standing.” Here, the plaintiff’s standing in the foreclosure lawsuit is challenged because the bank cannot provide the correct and complete documentation of its legal right to foreclose at the time that the foreclosure action was filed.

What Should You Do?

There are other foreclosure defenses that may apply to someone facing a foreclosure lawsuit here in Florida. Each case is unique and each case must be analyzed according to its specific circumstances, including the background paperwork and everything filed in both the civil lawsuit records and the real estate records for the property itself.

A good piece of advice if you are dealing with a foreclosure in Florida, is to speak with an experienced Florida real estate lawyer to learn about your rights, including learning if any of the above foreclosure defenses apply to your loan. Most real estate lawyers, like Larry Tolchinsky, offer a free initial consultation (over the phone or in person, whichever you prefer) to answer your questions.

Florida home buyers are not required by law to survey their residential property before they close on their new home. However, it’s a good idea to do so because any number of issues can materially affect the value of the property and the ability to sell it.

What is a Survey?

A certified property boundary report, or “survey,” outlines and defines all of the unique characteristics of land and its improvements. The creation of a physical survey is done by a surveyor licensed to perform physical surveys by the State of Florida. As part of the creation of the survey, a licensed surveyor will visit the property and record certain information about the location. He or she will not rely solely on records or plats filed with the county recorder’s office, but those documents will be reviewed to aid in preparation of the final document.

The surveyor will make an independent, professional determination about the land and all improvements found thereon. He or she will use experience and professional expertise, as well as Global Positioning Systems (GPS),Computer Aided Drafting (CAD), Robotic Survey Systems (RSS), and Laser Scanning to create a boundary survey.

A buyer can expect to find the following information on a survey:

Details regarding the boundary lines for the land or lot;

Descriptions of where the improvements are located on the property including the distance between each improvement and the boundary lines; and

Disclosures of specific characteristics of the property, including:

Location of all utilities

Location of all easements

Path of access for all easements

Boundary line encroachments; and

Location of the road right of way.

If you buy oceanfront property with an existing fence, the survey will identify it as well as if it conforms with federal laws and local ordinances.

Ten Reasons Why Surveying Florida Property Is A Good Idea

From the perspective of an experienced Florida real estate attorney, there are several reasons that someone buying Florida residential real estate should have a survey before the closing of the transaction.

1. Determine The Visible Boundary Lines

Regardless of how long the property owner has lived in the home, or how established the neighborhood is, lawyers all too often negotiate boundary disputes between the owner and neighbors. Here, property owners have been assuming that their property lines were in one place, when in actuality the legal description determines their boundaries in a different location.

This can be a serious problem for a new buyer who wants to put up a privacy fence, to tear down a pier, or to pave an access road or gravel driveway. The new buyer may discover that his or her new neighbor disputes the right to do so because of confusion over their property boundaries.

The survey explains where the visible boundaries are for the lot that is being purchased and warns of potential property line disputes.

The certified survey itself provides admissible expert evidence regarding whether or not the legal description of the property contained in the sales contract and closing documents is correct. It gives the buyer something to show a neighbor after closing, and, if there are inaccuracies revealed in the legal description, it gives the buyer a basis to object to the title to the property before closing.

2. Locations And Dimensions Of Improvements

The survey will include details regarding everything that exists within or atop the land. This includes buildings, fencing, and other improvements.

The surveyor will confirm whether or not the improvements on the property conform with applicable state or federal laws as well as other restrictions (county codes, city ordinances, etc.). These can include regulation of things like the height of homes in a particular community (where the restrictions set homes at two or three stories), as well as parking restrictions, frontage requirements, and federal environmental agency regulations.

If the surveyor discovers the location, or the dimensions, of an improvement is in violation of any statute, law, code, or ordinance, then the surveyor puts the buyer on notice that the property is in violation (this information will be included on the survey under the surveyor’s notes).

3. Locations Of Utilities

Florida has particular requirements for the placement of residential utilities because of our state’s unique environmental characteristics. For example, the Florida Division of Water Resource Management oversees the protection of the quality of Florida’s drinking water as well as its ground water and wetlands. Buyers and sellers alike may be unaware of the particular regulations that apply to the location of utilities on the land.

Surveys will reveal the utilities existing on the land. These include underground drains, sewer systems, power cables, and above-ground utility poles and wiring.

Buyers must understand that upon taking ownership, they are subject to the rules and regulation of these utilities. If the Florida utility provider has the right of access to the site, then it may have the power to force the buyer to cut back trees as well as limit where additional improvements (like a swimming pool) can be built.

4. Location Of Obvious Easements

Easements are established under Florida Statute 704.01 as an implied grant of access on the land to another person or entity. One common example is a utility pole or light fixture placed on the residential lot.

In a survey, easements will be shown and described insofar as who has the right of access on the property, the extent of the easement, and its basis. The survey may also provide reference sources for the easement, including real estate records, municipal ordinances, and deed restrictions.

5. Location Of Hidden Easements

Hidden easements are not easily seen by a walk around the land itself. These include underground utilities where the utility company may have an easement to access the land in order to repair or maintain buried pipes, drains, or cables.

6. Right Of Way

Right of way easements are recognized in Florida Statute 704.01 as an implied grant of access on the land tract to another person or entity. These easements exist because there is no other reasonable way to access the other person’s land except by over the land owned by the seller. Right of way easements may be owned by another person (like a neighbor) or by a legal entity (like the local electric utility company).

In a survey, these easements will be shown and described insofar as who has the right of access on the property, the extent of the easement, and its legal basis. The survey may also provide reference sources for the easement, including land owner agreements filed in the real estate records or utility requirements found in municipal ordinances, county building codes, or deed restrictions established at or before the time that a residential division was platted.

7. Natural And Manufactured Objects Affecting The Property

The survey will include references to natural characteristics of the land that may impact its use. This includes any ponds, creeks, or lakes as well as water wells. Note: the survey may not go so far as to delineate detailed environmental issues particular to Florida tracts, including underground springs or wetlands. These are outside the scope of the standard land survey and must be evaluated by environmental engineers, etc.

Additionally if there are any manufactured objects impacting the use and enjoyment of the land, they will be identified in the survey. These include things like sheds, fences, and docks.

8. Discrepancies Between Recorded Instruments And Ground Itself

The surveyor will walk the property, looking for physical markers left on the property to identify the dividing lines of ownership. He or she will then reference the instruments recorded in the county real estate records, which also identify the ownership lines for the parcel.

In Florida, there may be land records with surveys that are outdated and not as accurate as those done today with technological advances like CAD or GPS. The land’s markers may have moved or traveled over time, as well.

The survey will identify any discrepancies between the recorded instruments and the ground itself. The survey will not decide the ultimate property line of ownership. However, the discrepancies will advise the property owner of the need to confirm the actual boundary lines before sale or transfer.

9. Elevations On The Land (Topography)

A topographic survey or a “topo” survey is a specific purpose survey. It is generally performed to determine features of the property and any elevation changes, for use in new construction on raw land.

In Florida, government agencies, including city building departments, often require a specific survey before granting building permits and allowing construction to commence.

10. Setback Requirements

Restrictive covenants are found in the recorded real estate records for the property. In Florida, these restrictions exist to protect the community or development over time, by prohibiting certain things from being built or used on the land.

Zoning laws also exist to define and prohibit certain uses of the property.

Setbacks are one type of zoning requirement which will be identified in a survey. A common setback is a limitation on where any fence can be placed on the lot, or how far back from the street the dwelling (and any improvements) can be built.

Some communities do not allow fencing of front yards, for instance. Fencing of back yards may be required to be placed a certain number of feet from the property line or alleyway. Additionally, zoning laws may require mailboxes be placed at a certain location on the property.

The survey will also reveal if a violation of the setback exists on the land. If so, then the issue will need to be corrected by the seller before the buyer closes on the transaction.

Florida Real Estate Attorney Can Help Home Buyers With Survey Concerns

There are many issues to be considered when buying residential property here in Florida. Each home must be evaluated for own set of issues, including issues that may be found on a boundary survey of the property. Any one of the above issues can materially affect the value of the property and for the seller to find a ready, willing and able buyer.

Buyers can rectify survey issues before closing by requiring the seller to fix the problem (i.e. removing a fence or removing an other item encroaching into an easement). After closing, any problems that a survey would have revealed likely will be the buyer’s problem.

Do you have questions or comments? Then please feel free to send Larry an email or call him now at (954) 458-8655.

If you found this information helpful, please share this article and bookmark it for your future reference.

]]>10 Reasons To Have A Home Inspection In South Florida https://aboutfloridalaw.com/2018/04/17/10-reasons-to-have-a-home-inspection-in-south-florida/
Tue, 17 Apr 2018 16:02:27 +0000http://aboutfloridalaw.com/?p=7264Under Florida Statute 468.8311, home inspection services are defined as “a limited visual examination of the following readily accessible installed systems and components of a home” performed by a licensed home inspector. Those items include:

The Structure of The Home

Electrical System

HVAC System

Roof Covering

Plumbing System

Interior Components

Exterior Components and Site Conditions that affect the Structure.

Anyone buying a home or condo in Florida should get a thorough inspection before their closing. In fact, every standard residential real contract in Florida has a provision giving the buyer an inspection period to determine if the property is acceptable to the buyer. The inclusion of this provision in every standard contract is invaluable to a buyer, but is only helpful if the buyer exercises his or her rights in a prudent manner.

The most common complaint we hear in our office from buyers about sellers after a closing is with regards to non-disclosure of an item which materially affects the value of the property (i.e. roof, plumbing, mold, etc.). The unfortunate part about a large amount of these complaints is that we are unable to help these buyers simply because they either failed to conduct an inspection, they used a questionable inspection company, or they did not get a property disclosure form from the seller at the time their real estate contract was signed (or their realtor failed to tell them they should require a seller to provide a seller disclosure form as part of the real estate contract).

Termites are not covered in a standard Florida home inspection.

Below are 10 reasons why a Florida home buyer, especially a buyer who is new to the area, should get a home inspection before purchasing a new home:

1. Written Opinion

Under Florida law, a home inspector must provide his or her written professional opinion of the condition of the home they are inspecting. All of the systems and components of the property (as listed above) are examined and the condition of each of these items is discussed, including an estimate of the cost to repair an item, in the written report. This written inspection report is important to a buyer not only for purposes of learning the condition of these systems and components but also to negotiate repairs, or repair credits, with the seller.

2. Hidden Defects

Sellers, and their real estate agents, are legally required to disclose any issues with the home that they knew or should have known about, but this does not mean that the seller will comply with his or her legal duty to reveal hidden defects to the buyer. Having a written home inspection is the best way to verify any information they buyer provides about the condition of the property and it helps the buyer to discover defects that the seller may not even be aware of at the time of contract.

3. Home Inspections Are Not Expensive

Many buyers are concerned with keeping closing costs as low as possible. Being financially prudent in a home purchase is smart. So, potential buyers should know that hiring a professional home inspector here in Florida is not that expensive.

Of course, there is no one-size-fits-all cost for a valid home inspection. Buyers should be wary of any inspection service that offers a uniform price and buyers should ask the inspection company, before the inspection, what the inspection will cover and the limitations of their inspection services (ask to see a sample inspection report ahead of time).

The actual cost of the inspection will depend upon several factors. The cost of an inspection can be based upon the age of the home, its location, and its size. Improvements like docks, pools and pilings will likely increase the complexity of the inspection and its price.

In Florida, a basic home inspection, one which only inspects those items in Florida Statute 468.8311, should range between $200 and $500. When balancing the cost against the information it verifies and can provide to a buyer about a home’s condition, a home inspection is worth its price.

4. Repairs Double-Checked

Prudent buyers can include provisions in their sales contract that mandate the seller make certain repairs on the property before the closing. A home inspection not only confirms that the repairs are necessary, it can verify, upon reinspection (this service should be written into the contract with the inspection company) if the contracted repairs have been performed in an acceptable manner.

5. Professional Eyes

In Florida, home inspectors must be licensed by the State of Florida. Under Florida law, they must

Complete a department approved 120-hour course of study;

Pass a department approved examination; and

Pass a criminal background check.

Florida inspections must be done by someone who has taken an exam and proved their knowledge of common home related issues, including moisture intrusion, insulation and ventilation issues, electrical systems, septic systems, energy efficiency, etc.

6. Mold Inspection

Mold is a real concern for homeowners in Florida because it can not only destroy the structure of the building, it can also bring many health issues to the people around it. Mold can cause various health issues including respiratory infections, skin irritation, eye irritation, as well as worsening a preexisting condition such as asthma. This is why it is extremely important for a buyer to ask their inspection company about having a mold inspection.

In Florida, there are specific licenses issued to professionals who inspect for mold and mold damage in residential property. They are called “Mold Assessors” and they are educated in sampling for mold in the home or condo, as well as giving a written opinion on (1) whether or not any mold is present in the property; (2) the type of mold discovered; and (3) the level of mold existing there.

Florida home inspectors should not present themselves as being qualified to inspect for mold unless they are duly qualified under the Florida mold licensing law. See, Florida Statute 468.8413.

7. Termite Inspection

Homeowners in Florida should be mindful of the destruction that termites can bring to a property, and be sure to ask their inspection company if they are qualified to inspect for termites. It is important to find a company that will diligently examine the property, and rid the property of the pests if needed, to avoid further damage to the structure of the home.

Under Florida law, a specific license is required for those who inspect for termites or “wood-destroying organisms.” These are WDO Inspectors licensed under Florida Statute 468.83.

The WDO inspector is qualified to search for a variety of things that can destroy the lumber and wood within the structure of the home. They look for insects and fungi.

The inspector of the home’s structure is not legally required to look for termites. Moreover, he is not qualified to do so.

WDO Inspectors must work for a licensed pest control company. They should have a valid Florida identification card, with a state license number, stating they are certified as “a pest control operator.” See, Florida Statute 482.021.

8. Radon Inspection

Radon is invisible, and humans cannot smell or taste it. However, it is deadly: radon is classified as a Class A carcinogen, and it is recognized as the second leading cause of lung cancer in the United States.

Radon is a tremendous health concern in Florida. The Department of Health reports that 20% of Florida homes have radon levels above the EPA safety level, and that elevated radon is a danger not only in single family homes but in high-rise condo towers and other types of Florida residential buildings.

This is because radium is naturally part of Florida’s soil. As it breaks down, radon is released. It seeps into foundations and flooring, and becomes trapped inside dwellings where its concentration levels escalate.

Radon must be addressed as part of any Florida residential closing, but there is no legal duty placed upon the seller to do more than notify the buyer that it may be a concern.

Under Florida Statute 404.056(5), an inspection of the residence should be made for radon gas. Often, it is only during the closing process that there will be testing for this toxin that is so common in Florida homes.

However, only a written notice or warning must be included in any residential real estate transaction “at time of, or prior to, contract for sale and purchase of any building.” The notice must include the following language as mandated by Florida law:

“RADON GAS: Radon is a naturally occurring radioactive gas that, when it has accumulated in a building in sufficient quantities, may present health risks to persons who are exposed to it over time. Levels of radon that exceed federal and state guidelines have been found in buildings in Florida. Additional information regarding radon and radon testing may be obtained from your county health department.”

It is up to the buyer to make sure that radon testing is done. This may require an additional inspection. Not all Florida home inspectors are qualified to inspect for radon. Under both federal and state law, there are professionals who are “radon certified” to provide inspections for the toxin.

It is widely recommended that Florida home buyers pay for a radon inspection. In some instances it may be a legal requirement under federal laws or regulations issued by the Environmental Protection Agency (EPA); the Federal Housing Administration (FHA); or the Department of Housing and Urban Development (HUD).

9. Flooding

In some parts of South Florida, there is a high risk of flooding due to the characteristics of the land itself. For instance, Broward County is known for the danger of flooding especially during hurricanes or heavy storms.

Under Florida law, a flood elevation certificate can be prepared by a surveyor, engineer, or architect but not by a home inspector. However, an inspector can uncover common signs of flooding like stains on the interior walls of a garage.

An elevation Certificate identifies the elevation level of the lot and the home and it is needed in order to obtain flood insurance. The rate of your flood insurance premium will depend upon the home’s flood elevation.

10. Added Protection From Professional Insurance

Florida law requires the licensed home inspector to maintain a $300,000.00 commercial general liability insurance policy. This policy covers property damage caused by the home inspector.

However, many home inspection companies will also carry “error and omissions” coverage. This is an insurance policy that covers a buyer from harm in the event the inspector fails to disclose or discover a major defect in the home which should have been reasonably detected by him or her during the inspection.

What is the importance in getting the added buyer protection of a home inspection if the home inspection company does not have professional malpractice insurance (E&O)? Knowing that the inspection company has this insurance in place can give a buyer piece of mind if he or she discovers a serious problem with the property after closing.

**Please note, as stated above, a buyer should be familiar with the limitation language in an inspection company’s contract. Most inspection companies limit their liability to the cost of the inspection or some other nominal amount. A buyer should ask to review this information before hiring an inspector.

Mold Assessors in Florida must carry $1,000,000.00 in Errors & Omissions insurance under Florida law (it is a condition of their license).

A Florida Real Estate Lawyer Can Help With Inspection Issues

Before buying a home in South Florida, it is important to understand how unique residential real estate is in our part of the country as well as the risks associated with owning a home.

Buyers need to know that real estate agents and brokers, as well as general home inspectors, are often more interested in making a profit than in making sure the buyer is aware of a home’s issues. Sellers may not know or they may not reveal issues like mold, flooding, or termites.

Having an experienced Florida Real Estate Lawyer to help with closing can be essential for a home buyer, particularly if they have already begun negotiations on the new purchase. Without having an advocate on their side, the buyer runs a risk of being deceived or worse during the transaction.

Do you have questions or comments? Then please feel free to send Larry an email or call him now at (954) 458-8655.

If you found this information helpful, please share this article and bookmark it for your future reference.

]]>Florida Title Company or Real Estate Lawyer: Who Should Handle Your Closing? https://aboutfloridalaw.com/2018/03/20/florida-title-company-or-real-estate-lawyer-who-should-handle-your-closing/
Tue, 20 Mar 2018 16:49:23 +0000http://aboutfloridalaw.com/?p=7215Florida does not require an attorney to oversee a residential real estate transaction. A buyer can purchase a home or condo in Florida and get a mortgage without getting legal advice from an attorney. A real estate agent can provide standardized contract forms, and a title company can issue title insurance and conduct the closing.

However, there are several important issues to consider when deciding whether or not to hire an attorney to conduct a real estate closing.

Florida residential real estate can have water access issues from ocean front to Gulf access, to the inland lakes, streams, wetlands, and protected freshwater swampland.

24 Issues To Consider When Choosing Between A Title Company or Real Estate Lawyer To Close Your Real Estate Transaction

When a buyer purchases a home or condo here in Florida, he or she will be dealing with a unique piece of real estate that has its own idiosyncrasies. Not only do we have a large amount of waterfront properties for sale, but there is also an abundance of foreclosures or property that was once subject to a foreclosure lawsuit (particularly in South Florida). Also, our area has a high percentage of condominiums which have their own legal peculiarities.

Below are some common legal issues that can arise in connection with a South Florida real estate closing, that only a Florida real estate attorney is authorized to address:

1. Seller’s Legal Duty To Disclose Defects

Under Florida law, the seller must disclose issues regarding the property that the seller knew about, or should have known about, which a buyer would not be able to discover even with an inspection.

A Florida lawyer can assist here in incorporating language in the real estate contract requiring the seller to meet their duty to disclose.

2. The Inspection (The inspection contract and the inspection report)

A Florida lawyer can read the inspection report and the inspection company’s contract to make sure the buyer is adequately protected. Inspections companies like to limit their liability to the cost of the inspection report. Many inspection contracts will have language protecting the inspector against inaccurate information and failing to identify issues with the property.

3. There Are Risks In Buying A Foreclosure

Buying a foreclosure comes with its own set of risks, including defects in the underlying foreclosure lawsuit.

How will a defect in the underlying foreclosure lawsuit impact the buyer’s ownership rights? What happens if, for example, the prior owner challenges the foreclosure based upon the mortgage being fraudulent (the mortgage was obtained without the prior owner’s knowledge)?

4. Buying A Home Involved In Litigation Can Be Complicated

Sometimes, the single family home or condo is subject to a lawsuit other than a foreclosure proceeding. The litigation may be a bankruptcy, partition action, divorce, or probate proceeding.

Each type of litigation comes with its own particular complications. A real estate attorney can review the court file, including any outstanding court orders, to ensure compliance, and address any legal issues that can impact the marketability of the property.

5. The Lease Agreement

Sometimes, residential property is bought as an investment and the property is sold to a buyer who has no intention of renting the property. A lawyer can review and answer questions about a lease agreement, prepare an assignment of lease, and facilitate an eviction.

6. Condominium Rights And Restrictions

There are extensive laws in Florida that relate specifically to condo unit owners and condominiums. Anyone purchasing a Florida condo should know what their rights and duties will be as a condo owner. For instance:

will they be able to rent the condo? If so, how often and for how long?

Is there an age requirement?

Can you have pets?

What about storage, parking, and dockage?

Can the new owner transfer his or her interest in these elements and who is responsible for the cost to maintain them?

7. Waterfront Property

Florida is surrounded by the Atlantic Ocean and the Gulf of Mexico, as well as the inland waterways and our renowned wetland areas. Some waterfront residential property is subject to restrictions. Does the waterfront property have riparian rights? Can the buyer build into the waterway for a dock or other structure? These are just a few of the issues to consider when buying a waterfront property.

8. Buying Personal Property With The Real Estate

What happens if the buyer wants to purchase some of the seller’s personal property (like patio furniture, a chandelier, or dining room table)? An attorney can counsel on how to structure a real estate transaction when personal property is being purchased along with the real estate. How do you allocate the purchase price between personal property and real property and what are the tax ramifications related to capital gains taxes and sales tax? Is the personal property a fixture and not separate property subject to sales tax?

9. Code Violations

All residential property must comply with the applicable building and municipal codes. A Florida lawyer can explain the ramifications of a building code violation (like for an illegal conversion or enclosure, or a non-permitted bathroom) or pending code enforcement liens for uncut grass or a broken fence.

10. Boundary Issues

Every residential property has legally defined boundary lines. A Florida lawyer can give legal advice on any adverse matters shown on a survey, like easements encroachments, and other boundary issues such as fence lines and pool decks.

11. Different Ways To Own Real Estate; Different Deeds

In Florida, there are various ways to hold legal ownership of residential real estate. A Florida lawyer can explain the pros and cons of these different forms of ownership (tenants in common, tenancy by the entirety, and joint tenants with the right of survivorship) and counsel on the different types of deeds, which include:

Quit Claim Deed,

Warranty Deed,

Special Warranty Deed,

Trustee Deed, and

Personal Representative’s Deed.

12. Risks To Resolving Title Issues

A Florida lawyer can provide advice on the various methods to resolve common title issues and explain the related risks associated with each of the methods.

For example, if the buyer is purchasing a condominium, then the lawyer can explain the ramifications to a buyer of any litigation that may be pending against the association, or the ramifications of a construction related notice of commencements filed against the association.

13. Documents In The Chain Of Title

A real estate lawyer can explain the impact of agreements recorded in the public records which might affect the marketability of the title to the property. For example, restrictions and reservations found in deeds, like restrictions on the type of home that can be constructed on the property or the reservation of an easement for ingress and egress to a roadway or water access.

14. Closing With Open Title Issues

Some title companies are willing to close a transaction with issues in the chain of title simply because their title insurance underwriter is willing to issue a title insurance policy. However, there are risks of closing a deal with certain title issues pending against the property.

A lawyer can provide advice on the ramifications of closing a deal if, for example, a wild deed or an unsatisfied mortgage is found in the chain of title. Just because a title company issues a title insurance policy doesn’t mean there aren’t problems in the chain of title that a future buyer of the property can raise to terminate a deal.

15. Deed Requirements

A lawyer can give an opinion on the validity of a deed and on the requirements to record a deed in Florida. Was the deed executed in accordance with Florida Law? (See Fla Stat 689.01 & 695.26) What is the significance of the dates written on the deed? Which date matters? Is it the date the deed is signed, delivered, acknowledged or recorded?

16. The Obligations Of A Real Estate Agent

A lawyer can provide advice on a real estate agent’s responsibilities during the closing process, like having the seller disclose facts about the property that they know will materially affect the value of the property and that are not readily observable or known by the Buyer.

17. When An Entity Is A Buyer Or Seller, The Closing Can Be More Complicated

If the buyer or seller is an entity, an attorney can review the governing instruments to determine who has the authority to act on behalf of the entity as well as determine what documents are needed to effectuate the transaction. Included here are trust agreements, shareholder agreements and operating agreements.

Are the documents provided by the entity legally sufficient to effectuate the transaction? Who created the documents? Have all of the statutory requirements provided for under Florida law been satisfied?

18. Foreign Sellers Of Florida Residential Real Estate

Many sellers of Florida residential real estate reside in other countries. The IRS has withholding requirements related to certain foreign sellers that a buyer is obligated to follow. A real estate lawyer can explain the notice requirements necessary to exempt a transaction from the FIRPTA withholding requirements.

19. Who Does The Title Company Answer To When It Conducts A Closing?

If you hire a Florida real estate lawyer, you create an attorney-client relationship and the lawyer is your fiduciary. He or she answers to the party that has hired the lawyer.

If you rely upon a title company as closing agent, that title company acts as an agent for the title insurance company or title underwriter. The title company answers to the underwriter.

20. Negotiating The Agreements

A lawyer can negotiate on behalf of the buyer and provide legal advice from the time the listing agreement or contract is signed to the time the deed is recorded and the title insurance policy is issued.

The lawyer can review, negotiate and create addendum, escrow agreements and any occupancy agreements (pre-closing and post-closing).

Furthermore, a lawyer can provide advice on issues and/or defects found during the final walk through inspection.

21. Affidavits

A Florida real estate attorney can explain the ramifications of signing, under penalties of perjury, any of the 100+ types of affidavits that are used to address common title issues.

22. Duties Related To The Mortgage Company

A real estate lawyer can explain both the lender’s duties to the buyer (borrower) as well as the borrower’s duty to disclose certain information to his or her lender like a change in circumstances before closing (such as changes in income, job status, marital status, etc.).

23. Changing Ownership After Closing

Often, a buyer will want to transfer the home or condo to someone else, or add a parent or other family member to the deed, after the transaction closes. Doing so may cause a breach of certain provisions in the mortgage, like a due on sale clause.

Look At The Bottom Line When Choosing Whether Or Not To Hire a Florida Real Estate Lawyer to Conduct A Residential Closing

So far, we have listed 23 reasons why having a Florida real estate lawyer working on your residential closing in lieu of a title company is a good idea. Now, the reason that matters most:

24. While The Benefits Are Greater, The Expense Is Much The Same

Financially speaking, there is no difference between having a Florida real estate lawyer handle a residential closing and a title company closing the deal. However, having an attorney at the closing ready to provide advice can be invaluable to a buyer, especially when any of the above issues arises during the residential closing process.

What Should You Do?

A good piece of advice if you are buying real estate in Florida, is to speak with an experienced Florida real estate lawyer to learn about your rights, including those related to disclosures, inspections and title insurance. Most real estate lawyers, like Larry Tolchinsky, offer a free initial consultation (over the phone or in person, whichever you prefer) to answer your questions.